Posted
by
timothyon Saturday August 13, 2011 @12:27PM
from the when-does-the-rubber-band-snap? dept.

The Lodsys saga continues; reader WyzrdX writes with this excerpt from Wired: "Google has intervened in an ongoing intellectual property dispute between smartphone application developers and a patent-holding firm, Wired.com has learned, marking the Mountain View company's first public move to defend Android coders from a patent troll lawsuit that's cast a pall on the community. The company says it filed a request with the United States Patent and Trademark office Friday for reexamination of two patents asserted by East Texas-based patent firm Lodsys. Google's request calls for the USPTO to assess whether or not the patents' claims are valid."

What's the difference? They all monopolize ways of doing something. If you want to have cleaner exhausts, patents on catalytic converters mean you can't build catalytic converters without paying royalties. If you want to move your customers through your web shop with less obstructions, then you can't build a one-click shopping system without paying royalties.

If we're going to accept that intellectual property exists, then software patents are just as legitimate as hardware patents, and owning intellectual p

Other than with the expected value of a patent monopoly, how will the maker of a new drug finance FDA-mandated clinical trials? Show a viable alternative to patents for industries that are as heavily regulated for product safety and truth in advertising as the drug industry, and the case against patents will become clearer.

Other than with the expected value of a patent monopoly, how will the maker of a new drug finance FDA-mandated clinical trials? Show a viable alternative to patents for industries that are as heavily regulated for product safety and truth in advertising as the drug industry, and the case against patents will become clearer.

As much as I think the patent system in the Pharmaceutical industry has been misused (Omeprazole vs. Esomeprazole) [wikipedia.org] comes to mind, at least they are patenting a molecule, or a change in a molecule. A substantial thing. As in something of substance.

Software patents are all too often patenting vague hand waving processes or ideas. Usually just one brain cell shy of completely obvious. Hot air and lawyer drivel.

Nobody is talking about Drug Patent here. This is related to software patent. Especially the ones which the patent hold never implemente nor has any plan to implement. Those patents stifle competition and innovation. Kapeesh?

Other than with the expected value of a patent monopoly, how will the maker of a new drug finance FDA-mandated clinical trials? Show a viable alternative to patents for industries that are as heavily regulated for product safety and truth in advertising as the drug industry, and the case against patents will become clearer.

Name an example of where that is actually working with the pharm industry....still waiting....

Name one example where capitalism is working in the pharma industry. Hell, name a place where capitalism exists in the pharma industry. It might be nice to give at least some form capitalism a try. Sure as hell couldn't be any worse than the corporate totalitarianism system currently in place.

Yup, that works. But only after at least 20 years (often more) of extortion level pricing that puts a great many peoples health at risk especially lower income people who can't afford to pay off politicians to pass laws allowing them to get rich extorting money from people by threatening their lives.

You only prove my point. A "generic" drug, by definition, is one that has been patented, exclusive, and profitable enough to fund research on other drugs. In a socialist system, no drug would ever by "generic" because no drug would be "exclusive". In other words, there would be no financial incentive for any company to invest in new drugs, only the govt. and currently, the majority of countries can't even pay the bills they have now, no less invest in new drugs.

One example ?Jonas Salk [wikipedia.org], a very bad capitalist and a wonderful human being:

"In 1947, Salk accepted an appointment to the University of Pittsburgh School of Medicine. In 1948, he undertook a project funded by the National Foundation for Infantile Paralysis to determine the number of different types of polio virus. Salk saw an opportunity to extend this project towards developing a vaccine against polio, and, together with the skilled research team he assembled, devoted himself to this work for the next seve

Yet he did this in a capitalistic system, he just chose to not capitalize on his "invention". And not to rag on any other country, but the greedy ass American model is surely not perfect, but not sure if New Zealand is leading the industry in new life saving drugs.

I don't think that the system works best if EVERYONE was either socialist or capitalist, but good old fashioned greed is a useful tool to get people to invest in something that is a long shot. Greed is often a very useful tool, even if ugly.

Yet he did this in a capitalistic system, he just chose to not capitalize on his "invention". And not to rag on any other country, but the greedy ass American model is surely not perfect, but not sure if New Zealand is leading the industry in new life saving drugs.

Just because a model is dominant doesn't make it good. For an example look at the American model of banking that has swept the world and caused (and continues to cause) mayhem everywhere. Besides that, New Zealand has a population of 4,5 million people compared to 210 million for the US so there's a significant difference in resources.

I don't think that the system works best if EVERYONE was either socialist or capitalist, but good old fashioned greed is a useful tool to get people to invest in something that is a long shot. Greed is often a very useful tool, even if ugly.

Greed has its use and I'm not even opposed to people profiting from what they've developed, but it has to be in proportion to the risk taken/investment made. Especially in a s

And now to nitpick: The "greedy ass American model" isn't exclusive to America, nor do we own a patent on it. I know it's hip to think that all Americans are greedy fucks, but really, we aren't as one dimensional as you make us out to be. Plenty are, but most Americans are more concerned about family time than making more money. I'm not one of them, but most are that way.

And "greed constrained" is problematic, in that the people who are in cha

Other than with the expected value of a patent monopoly, how will the maker of a new drug finance FDA-mandated clinical trials? Show a viable alternative to patents for industries that are as heavily regulated for product safety and truth in advertising as the drug industry, and the case against patents will become clearer.

Pharmaceuticals is probably the most profitable legal industry. Development costs compared to return are trivial compared to other industries like car manufacturers. Are pharmaceutical companies patenting ideas to are they? Patenting a manufacturing process - or a new variation of a product is a strawman when used to argue for patents on software "ideas". Patenting ideas is patenting the reworking of existing products - like building a house out of bricks and mortar then trying to patent the idea of buildin

Simple: Drug company presents its books with the costs required to make the drug, test the drug, etc and after it has been verified that it is so then the company is given a flat percentage of each sale until it reaches cost + 40%. It isn't like you can buy most drugs without prescription and this would allow them to make a standardized amount before the drug becomes generic without costing lives.

A lot of the compounds that drug companies even consider testing get run through simulations on computers long before they're ever actually synthesized in quantities large enough to test. The days when developing drugs meant synthesizing a compound, giving it to a mouse, and if it didn't die, looking deeper into commercializing it are long gone.

According to that article, that particular case had nothing to do with Google's patents. It was in fact company called Traffic Information that sued several companies producing web street maps.
Google became involved when Traffic Information notified T-Mobile that Google Maps traffic feature was infringing their patents.

This after Google themself take a broad patent like this [slashdot.org]?

It's not as broad as you might think. The patent applies only to "a broker computer system independent of the shipper and a merchant", not one where the merchant's system directly uses the shipper's web service, and especially not one that uses a table from the warehouse ID and the destination postal code prefix to the expected transit time.

I wouldn't say patents are bad, it's just this whole new class of flimsy patents. Hardware patents make more sense than software patents because they are generally harder to come up with and more expensive too.

I think the next version of Android... Ice Cream Sandwich is going to be fully vetted for patent claims.

This is impossible. There is not enough time or money to sift through all of the thousands upon thousands of software patents out there and say "our software does not violate this" to the satisfaction of everyone involved. Even if you do come to that conclusion, the patent holder could disagree and take you to court anyway, where you have to fight until the judge can say "no it doesn't violate the patent."

organizing and sifting through thousands of patents to pick out ones for further review by humans....

Give me a break. Have you ever read a patent? There's this huge disconnect in that patents are written by lawyers for things developed by computer geeks. The languages these 2 groups speak have NOTHING in common.

If only google had access to some kind of electronic system for organizing and sifting through thousands of patents to pick out ones for further review by humans....

You completely missed microlith's point. Even if you figured out every single patent that looks like your software might infringe on, and worked out ways around every last one of them, you'll still get blindsided by some troll suing you with a bullshit patent that you had no way of knowing applied. Like being sued by Lodsys because they claim

They have the technology, but when you consider the readability of patent documents, which make Latin seemingly easy to understand, you suddenly realise how easy it is to miss that someone patented something that sounds like the wheel.

It still wouldn't help, and that's part of why the patent system is so broken. No matter how sure the AI might be that no patent legitimately applies, a troll can still cost you millions in legal fees getting a court to agree. Even cases where there is obviously no infringement can cost over half a million dollars to litigate.

It's not that hard -- the underlying OS Linux is already somewhat vetted. Second they just need to get the Android feature list from their database and hire a small team to search each feature in the patent database. The team may be about 100 people.. each person can be assigned on average 100 features to research -- at 1 day per feature (average).. they can finish it in 4 months. Now that covers about 10,000 features. You may think "Android has more than 10,000 features".. is that really the case? I d

So, I reckon they have a budget of $1 billion to scrub their source of patent claims.

I think by then they would have a non-functional phone. And trying to scrub only the "non-bogus" claims is probably impossible. I don't think it's possible today to create any useful electronic device that does not attract a stack of patent claims.

How exactly do you 'vet' something for patents? Particularly, to 'fully vet' something. There are millions of patents Google would have to go through, and then figure out, for each one, how it could be applied to Android. Then you still have to deal with recently submitted patents that haven't even been published yet.

After this process, which would take years to do, would result in a stack of patents that version of Android could/would infringe [as only a judge can definitively make that determination],

So far, all the patent claims against Google that I have seen have simple workarounds

I take it you haven't been paying attention to Oracle's lawsuit against Google then? I don't see how that one has an easy workaround at this point. Had they worked around it during Android's development, sure, it'd be fine. But now? Not gonna happen.

Apple's intervention claim is actually quite strong. They say we have a license to the patent, and the license terms mean that all developers can make use of our software implementing the patent on iOS without needing a license. If that argument flies, and it has a very good chance in my opinion, they can get rid of Lodsys at very low cost. All the judge has to do is check the license terms, which judges are much better at than checking patents. It does mean, however, that Apple doesn't help Android developers at all (but then there is no reason for Apple to help Android developers).

Google's intervention very nicely attacks at a different angle. So there may be twice the cost for Lodsys, who has plenty of work anyway with half a dozen cases against it for declaratory judgements.

If things were as easy as you (gnasher719) say, it would certainly be just a matter of contract interpretation. But it's not. You wrote your post prior to reading my explanation of why it's far from easy [blogspot.com] to argue with the existing license agreement. I linked to that explanation before.

Apple (and Google and others) got a license to Lodsys's patents not from Lodsys itself but from Intellectual Ventures, along with roughly 30,000 other Intellectual Ventures patents. It's highly unlikely that Intellectual Ventu

Thanks for this support. The fact of the matter is that the world's leading news agencies, newspapers and websites quote me regularly on these topics -- in the U.S., in Europe, in Asia, in Australia, at times even in Latin America. I furthermore have a host of financial services companies among my clients asking me for advice as they shape their investment decisions. Those audiences are obviously more important to me, and it turns out that the quality of Slashdot due to the criteria by which people vote pos

I've seen this type of comment several times, but it's always been in the form of a simple assertion. It may well be the case that I simply lack the sophistication to see it, but I haven't found evidence of it in his writings. I get the impression that, right or wrong, he is presenting his genuine analysis. We all have biases, and biases can unknowingly affect his thinking, but of course they can also unknowingly affect the thinking of his critics.

Apparently if you have a dissenting opinion around here you must be either a) a shill, or b) an idiot. If you ask me it shows nothing but how overinflated the self-opinion is of these people who like to shout others down.

Absolutely. As a famous German poet said: "Ist der Ruf erst ruiniert, lebt's sich's gÃnzlich ungeniert". In English: Once your reputation is down the shitter, you (Florian Mueller) can post whatever you like.

The analytical approach: Everything that Florian Mueller posts will predict doom for Google, if at all possible, no matter whether it makes sense or not. Secondary, it will predict doom for Apple, if possible, unless this is in contradiction to the first premise. That makes it kind of pointless

If things were as easy as you (gnasher719) say, it would certainly be just a matter of contract interpretation. But it's not. You wrote your post prior to reading my explanation of why it's far from easy [blogspot.com] to argue with the existing license agreement. I linked to that explanation before.

You base defense of your argument . . . on your opinions written in a blog? Not a decision written by a court. Nor opinions of someone. That's like me basing my understanding of solvency of an investment based on a spreadsheet with numbers I just made up. Your explanation is completely based on logical and legal fallacies which you still perpetuate.

Apple (and Google and others) got a license to Lodsys's patents not from Lodsys itself but from Intellectual Ventures, along with roughly 30,000 other Intellectual Ventures patents. It's highly unlikely that Intellectual Ventures' standard patent licensing agreement says anything about 'app developers'. Chances are 99.99% that the term 'app developers' doesn't appear in that license agreement at all.

That's an idiotic interpretation. First of all, it doesn't matter that Apple and Google got the license from Lodsys or Intellectual Ventures. There is a ter

My reading of the documents suggests you missed the point entirely here. Apple is not claiming exhaustion as a defense for infringement for their developers. They are claiming exhaustion as a reason for their intervention under Fed R. Civ. P Rule 24(a). As such they do not have use it as a defense. What is important are the terms of the licenses which, again, no one here has read. You also ignored that Apple cites Fed. R. Civ. P. Rule 24(b) as another reason for the court to grant them leave to intervene.

Your reading of the documents is completely off base. Apple's motion for an intervention comes with a proposed answer to Lodsys's complaint, which raises only one defense: exhaustion. You could have read that on my blog. The other points you make are equally off-base.

I've read your blog. It wasn't filled with anything useful nor relevant. Like whether Apple licensed from Lodsys or Intellectual Ventures. Like your point about the license not having the term "app-developer". First of all it's grossly speculative on your part since you haven't read the license. Second, it may have the terms like "sub-license" and "partners" (which are more common in a legal document) than "app-developer".

You attack all sorts of other points that I'm not interested in discussing with you. The topic here was what Apple's proposed defense against Lodsys is. That one is available on Scribd as a PDF document for everyone to read, and it raises only one defense: exhaustion. Here's the Scribd link [scribd.com]. Compare the substance of that document to your off-base claim that Apple raised exhaustion only as a reason for an intervention without limiting its defenses to that one.

Again, I've read the document and you again miss the point. Apple's proposed defense is not in their motion to intervene. Their defense will be based on the licensing agreement that they made with Intellectual Ventures. In that agreement, it may actually explicitly detail that Apple may sub-license. The difference between us is that I acknowledge that my argument is speculation on my part as I have not read the agreement (nor have you). Barring that patent exhaustion is an option but we haven't remotel

You keep failing to acknowledge that what you claimed was wrong. It doesn't matter for this particular discussion between us what's in the Apple license agreement. You claimed that once Apple is admitted as an intervenor, it can bring up other defenses. That's why I pointed you to Apple's proposed answer to Lodsys's complaint, which is limited to only one defense (exhaustion). Don't try to confuse reasonable, unbiased readers here who follow our discussion. You said something utterly uninformed and you desp

You've never answered why that matters. Despite not acknowledging that it is complete speculation on your part what is in the unseen agreement, why is it relevant that Apple use the exact term? They may use another term.

You claimed that once Apple is admitted as an intervenor, it can bring up other defenses. That's why I pointed you to Apple's proposed answer to Lodsys's complaint, which is limited to only one defense (exhaustion).

You keep speculating on what Apple may or may not do based on what it wrote in the motion to intervene. But refuse to acknowledge that it is pure speculation. The reply by Apple does not tip its hand either about how Apple intends to defend

As it has been shown, Lodsys is owned and operated by a single person and that person lives and resides in Wisconsin. You can make claims of being based in east Texas all day long, but when it comes down do where the one person behind all of this lives, you have to go to Wisconsin to find him.

I'm not saying anyone should actually pay this asshole a visit, but I would love to see him get interviewed by someone in a bonafide news organization to answer some really tough questions.

The patent system is broken. Lodsys however can not be held accountable for that.

Big companies sueing the snot out of each other with patents: accepted.
Big companies sueing the snot out of smaller companies treading on their lawn: accepted.
Small companies sueing big companies: surely, now we have a problem?

Sure, it's the business model of Lodsys to hoard patents and sue. But the regulatory framework around patents facilitated its business model. Lodsys plays by the rules. The only really significant d

There is a possibility that the small company you are referring to Lodsys is actually a bigger company;) You need money, a shit load of it when you engage in a endless patent war... where do you think the money come from ?

Fact from wikipedia -> It is possible that Lodsys is a corporate subsidiary of patent holding company Intellectual Ventures.[4]